How Do I Get an Annulment in Illinois?
Full Question:
Answer:
You may file an annulment petition without an attorney. Filing fees vary by court, we suggest you call the clerk of courts for applicable filing fees. Below are some FAQ about annulments under Illinois law.
1) What is annulment, and when can a marriage be annulled?
Annulment (declaration of invalidity) is a legal proceeding to declare a purported marriage to be invalid -- as if it had never happened.
2) What are the grounds for annulment?
a.At the time of the marriage ceremony, one of the parties lacked capacity to consent to the marriage because of mental incapacity or infirmity (e.g., retardation, psychosis, dementia, or intoxication by alcohol or drugs) or was induced to enter into the marriage by force or duress or by fraud involving the essentials of marriage;
b. A party cannot consummate the marriage by sexual intercourse and the other party did not know of the incapacity;
c.A party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval;
d.The marriage is prohibited (see above).
3) Is there a time limit for getting an annulment?
Yes. The time limit depends upon the grounds for annulment.
a.Lack of capacity to consent to the marriage:
Either party may petition, but the petition must be filed no later than 90 days after the petitioner obtained knowledge of the grounds.
b.Inability to consummate the marriage: Either party may petition, but the petition must be filed within one year after the petitioner obtained knowledge of the grounds.
c.Underage party: That party, or his or her parent or guardian, may petition for annulment prior to the time the underage party reaches the age at which marriage is permitted.
4) Must a petition for annulment be filed to set aside a prohibited marriage?
No. A prohibited marriage is void, whether or not a petition for annulment is brought. However, many lawyers believe it's better to be safe than sorry, and they recommend seeking a court's declaration of annulment.
5) If one wishes to have a void marriage annulled, who may file the petition?
A petition for declaration of invalidity for a void marriage may be filed by either party, the legal spouse in case of a bigamous marriage, the State's Attorney, or after the death of one of the parties, a child of either party, at any time not to exceed 3 years following the death of the first party to die.;
6) If grounds for annulment exist for a voidable marriage, but the petition is not filed within the prescribed time, what happens?
If a petition for annulment of a voidable marriage is not filed within the time subscribed by law, the marriage will be recognized as valid. ;
Please see the following IL statute:
(750 ILCS 5/Pt. III heading)
PART III
DECLARATION OF INVALIDITY OF MARRIAGE
(750 ILCS 5/301) (from Ch. 40, par. 301)
Sec. 301. Declaration of Invalidity โ Grounds.) The court shall enter its judgment declaring the invalidity of a marriage (formerly known as annulment) entered into under the following circumstances:
(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;
(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;
(3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or
(4) the marriage is prohibited.
(Source: P.A. 80โ923.)
(750 ILCS 5/302) (from Ch. 40, par. 302)
Sec. 302. Time of Commencement.) (a) A declaration of invalidity under paragraphs (1) through (3) of Section 301 may be sought by any of the following persons and must be commenced within the times specified:
(1) for any of the reasons set forth in paragraph (1) of Section 301, by either party or by the legal representative of the party who lacked capacity to consent, no later than 90 days after the petitioner obtained knowledge of the described condition;
(2) for the reason set forth in paragraph (2) of Section 301, by either party, no later than one year after the petitioner obtained knowledge of the described condition;
(3) for the reason set forth in paragraph (3) of Section 301, by the underaged party, his parent or guardian, prior to the time the underaged party reaches the age at which he could have married without needing to satisfy the omitted requirement.
(b) In no event may a declaration of invalidity of marriage be sought after the death of either party to the marriage under subsections (1), (2) and (3) of Section 301.
(c) A declaration of invalidity for the reason set forth in paragraph (4) of Section 301 may be sought by either party, the legal spouse in case of a bigamous marriage, the State's Attorney or a child of either party, at any time not to exceed 3 years following the death of the first party to die.
(Source: P.A. 80โ923.)